Huddleston v. University of Vermont

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Huddleston v. Univ. of Vermont (97-262); 168 Vt. 249; 719 A.2d 415

[Filed 4-Sep-1998]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 97-262

James I. Huddleston, III Supreme Court

On Appeal from
v. Chittenden Superior Court

University of Vermont and December Term, 1997
State Agricultural College

Shireen Avis Fisher, J.

Frank H. Langrock of Langrock, Sperry & Wool, Middlebury, for
Plaintiff-Appellee.

Jeffrey J. Nolan of Dinse, Knapp & McAndrew, P.C., Burlington, for
Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

JOHNSON, J. Defendant University of Vermont and State Agricultural
College (UVM) appeals a superior court decision reversing and remanding
UVM's denial of plaintiff's application for in-state residency status with
the attendant benefit of reduced tuition. Plaintiff James Huddleston
(student) is a medical student at the UVM College of Medicine. UVM denied
student's application for in-state status because he failed to prove that
he satisfied the residency requirements by clear and convincing evidence.
Student appealed this decision to the superior court pursuant to V.R.C.P.
75. The superior court held that, since the preponderance of the evidence
standard is generally appropriate in administrative adjudications in
Vermont, it applies in UVM's residency determinations. The court remanded
the issue for UVM to determine by a preponderance of the evidence whether
student is eligible for in-state status. UVM now appeals, arguing that it
is not an administrative agency and possesses the implicit authority to set
the standard of proof required at residency determinations for reduced
in-state tuition. We agree and reverse.

Student was born and raised in Massachusetts, and graduated from Yale
University with a B.S. degree in May of 1994. Student moved to Vermont on
June 1, 1994, and subsequently found employment at UVM in Burlington. On
June 15, 1994, student started the application process for admission to
medical school, and applied to twenty-three medical schools, at that time
indicating his father's Florida residence as his permanent address. In
September 1994, student submitted an application to the UVM College of
Medicine, indicating his permanent address as Burlington, Vermont. In the
Spring of 1995, student registered to vote in Vermont, obtained a Vermont
driver's license, and registered his car in Vermont. Student also filed
his 1994 and 1995 income taxes in the state of Vermont.

In April of 1995, student was accepted by UVM as an out-of-state
student to begin his studies in the Fall of 1995. In July of 1995, before
starting classes, student applied for in-state tuition status. Student's
application was denied, and student subsequently appealed. After a
hearing, student's application was again denied. Student appealed to the
Residency Appellate Officer who held that student did not qualify as an
in-state student as defined in UVM's residency regulations because he
failed to establish the necessary intent to make Vermont his permanent
residence. Upon reconsideration, the Residency Appellate Officer again
denied student's application for in-state tuition status. Student then
submitted another application for in-state tuition status for the semester
starting in the spring of 1996. A hearing was held and his application was
denied. In April of 1996, student filed a complaint under V.R.C.P. 75 in
Chittenden Superior Court.

In this Rule 75 appeal of governmental action, the Chittenden Superior
Court was confined to reviewing only substantial questions of law. See
Molesworth v. University of Vt., 147 Vt. 4, 6, 508 A.2d 722, 723 (1986).
The court held that, although there was evidence to justify the residency
officer's denial of in-state status, the trustees were not authorized to
adopt a clear-and-convincing-evidence standard of proof because this power
was not explicitly granted by the Legislature. The court held that,
because a preponderance of the evidence standard is

generally appropriate in administrative adjudications in Vermont, that
standard applies to UVM's residency determinations. The court also
concluded that there was competent evidence in the record to support the
denial of in-state status, and that UVM's more complex definition of
domicile did not violate the Equal Protection Clause. The court remanded
the issue to UVM for determination of student's in-state status application
under the proper standard of proof. Defendant UVM now appeals the superior
court order and decision, arguing that UVM is not an administrative agency
and that it possesses the implicit authority to set the standard of proof
required at residency determinations.

We first determine whether we have jurisdiction to consider this
appeal. As we have previously recognized, "a final judgment is a
prerequisite to appellate jurisdiction unless the narrow circumstances
authorizing an interlocutory appeal are present." Hospitality Inns v.
South Burlington R.I., 149 Vt. 653, 656, 547 A.2d 1355, 1358 (1988). A
decree or judgment is final if "it makes a final disposition of the subject
matter before the Court." Woodard v. Porter Hospital, Inc., 125 Vt. 264,
265, 214 A.2d 67, 69 (1965). The superior court's order does not resolve
the controversy between the parties. It is not a final judgment, and a
proper appeal lies only pursuant to V.R.A.P. 5.

This appeal does not meet the requirements of V.R.A.P. 5 because it
was taken without agreement of the parties or permission of the trial
court. Nevertheless, we have previously suspended the application of
V.R.A.P. 5 where dismissal of the appeal would most likely result in
another appeal after final judgment, the merits of the questions of law
were fully briefed and argued before the Court, and the Court has spent
valuable time preparing for the case. See Castle v. Sherburne Corp., 141
Vt. 157, 165, 446 A.2d 350, 354 (1982). All of these factors are present
in the instant case. Reversal of the trial court's decision requiring UVM
to evaluate student's application under a preponderance of the evidence
standard will obviate the need for inevitable additional appeals and will
avoid a rehearing of student's claims by UVM under an

erroneous standard of proof. Thus, in the limited circumstances of this
case and in light of our decision to reverse the trial court's decision, we
suspend the rules and reach the merits. See V.R.A.P. 2.

II.

We now turn to the merits of UVM's appeal. The issue for our review
is whether the trustees of UVM have the authority to adopt a
clear-and-convincing-evidence standard of proof in deciding eligibility for
reduced in-state tuition. The trial court held that, in the absence of a
specific statute authorizing UVM to set a higher burden of proof,
administrative adjudications of residency should be subject to the
Administrative Procedures Act (APA), 3 V.S.A. §§ 801-849. The APA does
not specify a burden of proof, but we have held that the usual standard of
proof in state administrative adjudications is a preponderance of the
evidence. See 3 V.S.A. §§ 801-849; In re Muzzy, 141 Vt. 463, 472, 449 A.2d 970, 974 (1982).

In opposition to the trial court's decision, UVM claims that it is not
an administrative agency subject to the APA, citing Sprague v. University
of Vermont, 661 F. Supp. 1132 (D. Vt. 1987), and that, as a result, our
cases supplying a burden of proof in state administrative adjudications are
inapposite. UVM also argues that it has plenary authority to manage and
control its internal affairs, and has specific authority to define and
decide residency determinations within the limits of the statute. See 16
V.S.A. § 2822.

We agree with UVM that it has the specific authority under section
2822 to define and decide residency determinations, and that the delegation
is sufficiently broad to encompass the adoption of regulations and
procedures that include a burden of proof. Nothing in the APA or our
previous interpretations of the burden of proof applicable to certain
agencies conducting administrative adjudications alters this
conclusion.(FN1)

The Legislature has delegated to UVM the specific authority to
implement the legislative policy of securing greater educational
opportunities through reduced tuition charges for Vermont residents. This
policy, found at 16 V.S.A. § 2282, provides for reduced tuition at UVM and
the State Agricultural College, and requires the trustees of UVM to define
eligibility for reduced tuition charges to effectuate the purposes of the
section. In defining eligibility, UVM must include, but is not limited to,
the following requirements:

(1) reasonable durational domicile requirements;
(2) provision that a residence established for the purpose of
attending an education institution by either the person seeking
reduced tuition or another shall not by itself constitute residence
for the purposes of this section; [and]
3) requirement of such other indicia of permanent residence as
said trustees shall deem proper.

Id. § 2282(c). The policy stated in subsection 2, that mere residence for
the purpose of attending a Vermont institution is not sufficient to prove
in-state status, is echoed in a companion statute, section 2282a. These
statutes confer upon the UVM trustees the "authority . . . to distinguish
between in-state and out-of-state residents for tuition purposes and to
establish certain guidelines for deciding eligibility for reduced tuition
charges." Molesworth, 147 Vt. at 6, 508 A.2d at 723.

It is true, as student argues, that the legislative grant of authority
does not mention that UVM must use a particular standard of proof to
determine residency status, but it does not follow that UVM is without
authority to adopt one. A fair reading of the statute supports the
conclusion that UVM was required to do more than adopt a regulation
defining domicile. The policy statements evince that the Legislature
contemplated that UVM would take action to "effectuate the purposes of this
subsection." Id. § 2282(c). The statute required UVM to adopt regulations
and procedures that were not specifically enumerated in the statute.
Otherwise, the policy could not be implemented.

UVM adopted a residence regulation setting forth in-state status
classification rules and requirements for documentation, and providing
procedures by which in-state status would be

decided. The regulation, originally adopted in 1974 and amended most
recently in 1987, includes a number of procedures, including the right to a
hearing, and necessarily includes a provision concerning burden of proof.
The regulation places the burden of proof on the person seeking in-state
status.

The question is whether UVM has acted consistently with its authority
under the enabling statute in adopting a clear-and-convincing-evidence
standard of proof. See In re Baptist Fellowship of Randolph, Inc.. 144 Vt.
636, 638, 481 A.2d 1274, 1275 (1984) (validity of agency's rules and
regulations will be upheld if they are reasonably related to purposes of
enabling legislation). While we need not characterize UVM's status for the
purposes of this opinion,(FN2) we note that, even if UVM's actions were
evaluated as those of an administrative agency, we would nonetheless find
that UVM has acted well within the powers granted to it.

It is wholly consistent with the purpose of the statute for UVM to
erect significant barriers to establishing in-state residency, in view of
the Legislature's twice-expressed concern that Vermont residency alone
should not automatically confer in-state status. The hurdle to in-state
tuition is high in order to effectuate the purpose of the statute, which is
to provide greater educational opportunities to the youth of Vermont at the
state university. Moreover, although UVM's Residency Policy has been in
effect for many years, the Legislature has not taken any action in response
to it or changed the larger policy goals set forth in the statute.

We conclude that UVM trustees have the implicit authority to adopt a
standard of proof applicable to residency determinations in furtherance of
their legislative charge to implement state policy on reduced tuition for
in-state students. Had the Legislature intended to prohibit the

use of particular burdens of proof, it would have added those limitations
to section 2282(c). In light of the broad delegation of authority to UVM
on this subject, it would be inappropriate for the judiciary to substitute
its judgment on the proper standard of proof, so long as constitutional
rights are not implicated.

Our decision is not inconsistent with our holdings under the Vermont
APA where we have found that a preponderance of the evidence standard is
required in certain administrative adjudications. See In re Muzzy, 141 Vt.
463, 472, 449 A.2d 970, 974 (1982) (substantial evidence standard rejected
as appellate standard of review in favor of preponderance of evidence); see
also Relation v. Vermont Parole Bd., 163 Vt. 534, 539, 660 A.2d 318, 320-21
(1995) (parole revocation); In re VSEA, 162 Vt. 277, 280, 648 A.2d 394, 396
(1994) (labor relations); LaFaso v. Patrissi, 161 Vt. 46, 54, 633 A.2d 695,
700 (1993) (prison discipline). In each of these cases, a standard of proof
less than a preponderance of the evidence was used by the administrative
agency to determine substantial rights meriting a greater level of due
process. We do not find the same constitutional rights implicated in the
determination of residency status for in-state tuition. See, e.g.,
Spielberg v. Bd. of Regents, Univ. of Mich., 601 F. Supp. 994, 999 (E.D.
Mich. 1985) (rejecting constitutional due process challenge to aspect of
university's residency determination procedure). Thus, regardless of
whether UVM is subject to the APA, a question we do not decide, these cases
are inapposite to the facts before us because there is not a similar level
of due process implicated in the instant case.

In light of the Legislature's specific delegation of authority to UVM
to deal with the subject of residency, UVM is permitted to devise
appropriate standards with regard to residency determinations.

III.

Finally, student seeks to challenge the superior court's decision that
there was competent evidence in the record to support the denial of
in-state status. Plaintiff has not raised these issues by cross-appeal,
and UVM argues that we lack jurisdiction to consider these claims. We

agree.

An appellee seeking to challenge aspects of a trial court's decision
must file a timely cross-appeal, see Union Bank v. Jones, 138 Vt. 115, 125,
411 A.2d 1338, 1344 (1980), unless, of course, the party was content with
the final order below, leaving it nothing to appeal. See, e.g., Staruski
v. Continental Tel. Co., 154 Vt. 568, 571 n.3, 581 A.2d 266, 267-68 (1990).
In Staruski, the trial court granted the defendant's motion for a judgment
notwithstanding the verdict and the plaintiff appealed. The defendant
argued on appeal that, in the event the judgment as a matter of law were
reversed, he was entitled to a new trial because the trial court committed
several enumerated errors. We concluded that the defendant's arguments
were properly raised despite its failure to file a cross-appeal, reasoning
that the defendant was aggrieved by the errors it alleged only in the event
we overturned the trial court's judgment in its favor. See id. Otherwise
the errors were moot.

In the instant case, however, student was not content with the final
order of the trial court. Even if we affirmed the trial court's holding on
the burden of proof, student claims the trial court should have held he was
entitled to judgment as a matter of law because there was sufficient
evidence in the record to prove that his domicile was in Vermont. Student
was therefore required to appeal the ruling if he believed it was in error.
He did not do so, and we lack jurisdiction to reach the merits of his
claim. See Jones, 138 Vt. at 125, 411 A.2d at 1344 (court lacked
jurisdiction to hear appeal absent cross-appeal).

Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. The United States District Court for the District of Vermont
has thoroughly examined the question of whether or not UVM is a state
agency subject to the Administrative Procedures Act in Sprague, but our
holding here makes it unnecessary to reach those broader questions.

FN2. UVM argues that it is not a state agency and the trustees have
plenary authority to manage and control the University's affairs, that is,
that their authority is unrestricted unless specific statutes impose
limitations. State agencies, by contrast, have "only such powers as are
expressly conferred upon it by the Legislature, together with such
incidental powers expressly granted or necessarily implied as are necessary
to the full exercise of those granted." See In re Club 107, 152 Vt. 320,
323, 566 A.2d 966, 967 (1989) (quoting Trybulski v. Bellows Falls
Hydro-Electric Corp., 112 Vt. 1, 7, 20 A.2d 117, 120 (1941).

-----------------------------------------------------------------------------
Concurring

No. 97-262

James I. Huddleston, III Supreme Court

On Appeal from
v. Chittenden Superior Court

University of Vermont and December Term, 1997
State Agricultural College

Shireen Avis Fisher, J.

Frank H. Langrock of Langrock, Sperry & Wool, Middlebury, for
Plaintiff-Appellee.

Jeffrey J. Nolan of Dinse, Knapp & McAndrew, P.C., Burlington, for
Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J., concurring. I concur that UVM can require proof of
residency by clear and convincing evidence and that plaintiff is foreclosed
from arguing that he is a resident as a matter of law because he failed to
cross-appeal. I write only to state that the result is unjust.
Essentially, UVM is denying plaintiff residency status because, two weeks
after his arrival in Vermont in 1994, he once claimed he was a Florida
resident in applying to medical school in that state. In fact, he had no
serious claim to Florida residency even though his father resided in that
state. Thus, for purposes of tuition, plaintiff is stateless, unable to
claim residency anywhere.

Plaintiff's parents lived together in Massachusetts until their
divorce, when his father moved to Florida and set up a medical practice
there. Plaintiff remained with his mother, who claimed him as a dependent
for tax purposes, but attended private school in New Hampshire. He then
attended Yale University, with a summer semester at University of
California at Santa Cruz, until his graduation in May, 1994. In that
month, he moved to Burlington, Vermont

primarily because his girlfriend and his brother lived there. He has
resided in Burlington ever since, working first as a research assistant in
the psychiatry department of the UVM College of Medicine (July, 1994 until
August, 1995) and then attending UVM Medical School. He was turned down
for in-state tuition for the first semester of the 1995-96 academic year,
and then again for the second semester. It is the latter decision which is
on appeal.

UVM denied in-state residency because it found that plaintiff's work
in 1994-95 really was undertaken to improve his chance of getting into
medical school and thus showed nothing about his intent to remain
indefinitely in Vermont. Thus, the residency appellate officer stated in
her decision, "I do not find that your residence in Vermont has yet taken
on the permanence required by the UVM residency regulations or that you
continue to reside in Vermont for reasons other than continuing your
studies in Vermont." In response to a request for reconsideration, the
appellate officer sharpened the point of the decision:

You moved to Vermont temporarily to take some time off from
school, apply to medical schools and await the results of your
applications. It does not appear that your situation changed
because you were admitted to UVM College of Medicine.

The second decision, in March, 1996, has similar themes, but particularly
emphasizes that two weeks after arriving in Vermont, plaintiff filed a
standard application with 23 medical schools, not including UVM, claiming
Florida residency. The appellate officer concluded that the Florida
residence claim required plaintiff to take "appropriate steps to break
[his] ties to Florida and make Vermont plaintiff's true, fixed and
permanent home." Since plaintiff failed to do so, "UVM College of Medicine
offered [him] admission as a Florida resident."

The three decisions in this case are increasingly polarized, as
plaintiff has tried to respond to the earlier decision and the appellate
officer has shifted to new grounds. The main basis provided in the final
decision, that plaintiff is really a Florida resident, is not supported by
the record. Nor do I find any basis for the claim that plaintiff came here
to take off time from school rather than his stated claim that came here to
live with his girlfriend and brother,

both of whom were Vermont residents.

The law of domicile requires that every person have a domicile
somewhere. See, e.g., Piche v. Department of Taxes, 152 Vt. 229, 232, 565 A.2d 1283, 1285 (1989) (acquiring new domicile requires proof of residence
and intention to remain at new residence indefinitely). I cannot agree
that residency rules must be constructed to make it impossible for some
students to claim their domicile. Plaintiff's only serious claim of
domicile is in Vermont. He has not lived in Massachusetts for seven years
and did not return there after college. Except for periodic visits to see
his father, plaintiff has not lived in Florida. His presence in New
Hampshire, Connecticut and California, entirely for school purposes,
established no domicile in those states. Had plaintiff properly
cross-appealed, I would have found his claim of Vermont domicile valid as
a matter of law.

I am authorized to state that Justice Morse joins in this concurrence.

_______________________________________
Associate Justice

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